EXHIBIT 10h
MASTER EQUIPMENT LEASE AGREEMENT
THIS MASTER EQUIPMENT LEASE AGREEMENT dated as of December 21, 1995 is made
by and between KEYCORP LEASING LTD., a Delaware corporation with its principal
place of business at 00 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000 ("Lessor"), and
WEBSECURE, INC., a Massachusetts corporation having its principal place of
business at 000 X Xxxxxxxx, Xxxxxx, XX 00000 ("Lessee").
TERMS AND CONDITIONS OF LEASE
1. LEASE. Lessor hereby leases to Lessee, and Lessee hereby leases from
Lessor, the Equipment, subject to and upon the terms and conditions set forth
herein. Each Equipment Schedule shall constitute a separate and enforceable
lease incorporating all the terms and conditions of this Master Equipment Lease
Agreement as if such terms and conditions were set forth in full in such
Equipment Schedule. In the event that any term or condition of any Equipment
Schedule conflicts with or is inconsistent with any term or condition of this
Master Equipment Lease Agreement, the terms and conditions of the Equipment
Schedule shall govern.
2. DISCLAIMER OF WARRANTIES. LESSOR MAKES NO (AND SHALL NOT BE DEEMED TO
HAVE MADE ANY) WARRANTIES. EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER
INCLUDING, WITHOUT LIMITATION, THE DESIGN, OPERATION OR CONDITION OF, OR THE
QUALITY OF THE MATERIAL, EQUIPMENT OR WORKMANSHIP IN, THE EQUIPMENT. ITS
MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. THE STATE OF TITLE
THERETO OR ANY COMPONENT THERETO. THE ABSENCE OF LATENT OR OTHER DEFECTS
(WHETHER OR NOT DISCOVERABLE). AND LESSOR HEREBY DISCLAIMS THE SAME: IT BEING
UNDERSTOOD THAT THE EQUIPMENT IS LEASED TO LESSEE "AS IS" AND ALL SUCH RISKS. IF
ANY. ARE TO BE BORNE BY LESSEE. NO DEFECT IN, OR UNFITNESS OF, THE EQUIPMENT, OR
ANY OF THE OTHER FOREGOING MATTERS, SHALL RELIEVE LESSEE OF THE OBLIGATION TO
PAY RENT OR OF ANY OTHER OBLIGATION HEREUNDER. LESSEE HAS MADE THE SELECTION OF
THE EQUIPMENT FROM THE SUPPLIER BASED ON ITS OWN JUDGMENT AND EXPRESSLY
DISCLAIMS ANY RELIANCE UPON ANY STATEMENTS OR REPRESENTATIONS MADE BY LESSOR.
LESSOR IS NOT RESPONSIBLE FOR ANY REPAIRS, SERVICE, MAINTENANCE OR DEFECT IN THE
EQUIPMENT OR THE OPERATION THEREOF. IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (WHETHER UNDER THE UCC OR OTHERWISE),
INCLUDING, WITHOUT LIMITATION, ANY LOSS, COST OR DAMAGE TO LESSEE OR OTHERS
ARISING FROM ANY OF THE FOREGOING MATTERS, INCLUDING, WITHOUT LIMITATION,
DEFECTS, NEGLIGENCE, DELAYS, FAILURE OF DELIVERY OR NON-PERFORMANCE OF THE
EQUIPMENT. ANY WARRANTY BY THE SUPPLIER IS HEREBY ASSIGNED TO LESSEE BY LESSOR
WITHOUT RECOURSE. SUCH WARRANTY SHALL NOT RELEASE LESSEE FROM ITS OBLIGATION TO
LESSOR TO PAY RENT, TO PERFORM ALL OTHER OBLIGATIONS HEREUNDER AND TO KEEP,
MAINTAIN AND SURRENDER THE EQUIPMENT IN THE CONDITION REQUIRED BY SECTIONS 12
AND 13 HEREOF. Lessee's execution and delivery of a Certificate of Acceptance
shall be conclusive evidence as between Lessor and Lessee that the Items of
Equipment described therein are in all of the foregoing respects satisfactory to
Lessee, and Lessee shall not assert any claim of any nature whatsoever against
Lessor based on any of the foregoing matters; provided, however, that nothing
contained herein shall in any way bar, reduce or defeat any claim that Lessee
may have against the Supplier or any other person (other than Lessor).
3. NON-CANCELABLE LEASE. THIS LEASE IS A NET LEASE AND LESSEE'S OBLIGATION
TO PAY RENT AND PERFORM ITS OBLIGATIONS HEREUNDER ARE ABSOLUTE, IRREVOCABLE AND
UNCONDITIONAL UNDER ANY AND ALL CIRCUMSTANCES WHATSOEVER AND SHALL NOT BE
SUBJECT TO ANY RIGHT OF SET OFF, COUNTERCLAIM, DEDUCTION, DEFENSE OR OTHER RIGHT
WHICH LESSEE MAY HAVE AGAINST THE SUPPLIER, LESSOR OR ANY OTHER PARTY. LESSEE
SHALL HAVE NO RIGHT TO TERMINATE (EXCEPT AS EXPRESSLY PROVIDED HEREIN) OR CANCEL
THIS LEASE OR TO BE RELEASED OR DISCHARGED FROM ITS OBLIGATION HEREUNDER FOR ANY
REASON WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DEFECTS IN, DESTRUCTION OF,
DAMAGE TO OR INTERFERENCE WITH ANY USE OF THE EQUIPMENT (FOR ANY REASON
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WAR, ACT OF GOD, STRIKE OR
GOVERNMENTAL REGULATION), THE INVALIDITY, ILLEGALITY OR UNENFORCEABILITY (OR ANY
ALLEGATION THEREOF) OF THIS LEASE OR ANY PROVISION HEREOF, OR ANY OTHER
OCCURRENCE WHATSOEVER, WHETHER SIMILAR OR DISSIMILAR TO THE FOREGOING, WHETHER
FORESEEN OR UNFORESEEN.
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4. Definitions. Unless the context otherwise requires, as used in this
Lease, the following terms shall have the respective meanings indicated below
and shall be equally applicable to both the singular and the plural forms
thereof:
(a) "APPLICABLE Law" shall mean all applicable Federal, state, local and
foreign laws (including, without limitation, any Environmental Law, industrial
hygiene and occupational safety or similar laws), ordinances, judgments,
decrees, injunctions, writs and orders of any Governmental Authority and rules,
regulations, orders, licenses and permits of any Governmental Authority.
(b) "Appraisal Procedure" shall mean the following procedure for obtaining
an appraisal of the Fair Market Sales Value or the Fair Market Rental Value.
Lessor shall provide Lessee with the names of three independent Appraisers.
Within ten (10) business days thereafter, Lessee shall select one of such
Appraisers to perform the appraisal. The selected Appraisal shall be instructed
to perform its appraisal based upon the assurnptions specified in the definition
of Fair Market Sales Value or Fair Market Rental Value, as applicable, and shall
complete its appraisal within twenty (20) business days after such selection.
Any such appraisal shall be final, binding and conclusive on Lessee and Lessor
and shall have the legal effect of an arbitration award. Lessee shall pay the
fees and expenses of the selected Appraiser.
(c) "Appraiser" shall mean a person engaged in the business of appraising
property who has at least ten years' experience in appraising property similar
to the Equipment.
(d) "Authorized Signer" shall mean those officers of Lessee, set forth on
an incumbency certificate (in form and substance satisfactory to Lessor)
delivered by Lessee to Lessor, who are authorized and empowered to execute this
Lease, the Equipment Schedules and all other documents the execution of which is
contemplated hereby.
(e) "Certificate of Acceptance" shall mean a certificate of acceptance, in
form and substance satisfactory to Lessor, executed and delivered by Lessee in
accordance with Section 7 hereof indicating, among other things, that the
Equipment described therein has been accepted by Lessee for all purposes of this
Lease.
(f) "Default" shall mean any event or condition which, with the passage of
time or the giving of notice, or both, would constitute an Event of Default.
(g) "Environmental Law" shall mean any federal, state, or local statute,
law, ordinance, code, rule, regulation, or order or decree regulating, relating
to or imposing liability upon a person in connection with the use, release or
disposal of any hazardous, toxic or dangerous substance, waste, or material as
same may relate to the Equipment or its operation.
(h) ""Equipment" shall mean an item or items of personal property
designated from time to time by Lessee which are described on an Equipment
Schedule and which are being or will be leased by Lessee pursuant to this Lease,
together with all replacement parts, additions and accessories incorporated
therein or affixed thereto.
(i) "Equipment Group" shall consist of all Items of Equipment listed on a
particular Equipment Schedule.
j) "Equipment Location" shall mean the location of the Equipment, as set
forth on an Equipment Schedule, or such other location (approved by Lessor) as
Lessee shall from time to time specify in writing.
(k) "Equipment Schedule" shall mean each equipment lease schedule from time
to time executed by Lessor and Lessee with respect to an Equipment Group,
pursuant to and incorporating by reference all of the terms and conditions of
this Master Equipment Lease Agreement.
(I) "Event of Default" shall have the meaning specified in Section 22
hereof.
(m) "Fair Market Rental Value" or "Fair Market Sale Value" shall mean the
value of each Item of Equipment for lease or sale, unless otherwise specified
herein as determined between Lessor and Lessee, or, if Lessor and Lessee are
unable to agree, pursuant to the Appraisal Procedure, which would be obtained in
an arms-length transaction between an informed and willing lessor or seller
(under no compulsion to lease or sell) and an informed and willing lessee or
buyer (under no compulsion to lease or purchase). In determining the Fair Market
Rental Value or Fair Market Sale Value of the Equipment, (a) such Fair Market
Rental Value or Fair Market Sale Value shall be calculated on the assumption
that the Equipment is in the condition and repair required by Sections 12 and 13
hereof, and (b) there shall be excluded from the calculation thereof the value
of any upgrades and attachments made pursuant to Section 14 hereof in which the
Lessor does not own an interest; provided, however, that, unless otherwise
provided in such Section 22, for purposes of Section 22 of the Lease, Fair
Market Sale Value of the Equipment shall be determined based upon the actual
facts and circumstances then prevailing without regard to the assumptions in
clause (a) above.
(n) "Governmental Action" shall mean all authorizations, consents,
approvals, waivers, filings and declarations of any Governmental Authority,
including, without limitation, those environmental and operating permits
required for the ownership, lease, use and operation of the Equipment.
(o) "Governmental Authority" shall mean any foreign, Federal, state,
county, municipal or other governmental authority, agency, board or court.
(p) "Guarantor" shall mean any guarantor of Lessee's obligations hereunder.
(q) "Item of Equipment" shall mean each item of the Equipment.
(r) "Late Payment Rate" shall mean an annual interest rate equal to the
lesser of 18% or the maximum interest rate permitted by Applicable Law.
(s) "Lease", "hereof", "herein" and "hereunder" shall mean, with respect to
an Equipment Group, this Master Equipment Lease Agreement and the Equipment
Schedule on which such Equipment Group is described, including all addenda
attached thereto and made a part thereof.
(t) "Lien" shall mean all mortgages, pledges, security interests, liens,
encumbrances, claims or other charges of any kind whatsoever.
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(u) "Purchase Agreement" shall mean any purchase agreement or other
contract entered into between the Supplier and Lessee for the acquisition of the
Equipment to be leased hereunder.
(v) "Related Equipment Schedule" shall have the meaning set forth in
Section 27 hereof.
(w) "Renewal Notice" shall have the meaning set forth in Section 32 hereof.
(x) "Return Notice" shall have the meaning set forth in Section 13 hereof.
(y) "Rent" shall mean the periodic rental payments due hereunder for the
leasing of the Equipment, as set forth on the Equipment Schedules, and, where
the context hereof requires, all such additional amounts as may from time to
time be payable under any provision of this Lease.
(z) "Rent Commencement Date" shall mean, with respect to an Equipment
Group, the date on which Lessor disburses funds for the purchase of such
Equipment Group, as determined by Lessor in its sole discretion.
(aa) "Rent Payment Date" with respect to an Equipment Group, shall have the
meaning set forth in the Equipment Schedule associated therewith.
(ab) "Stipulated Loss Value" shall mean, as of any Rent Payment Date and
with respect to an Item of Equipment, the amount determined by multiplying the
Total Cost for such Item of Equipment by the percentage specified in the
applicable Stipulated Loss Value Supplement opposite such Rent Payment Date.
(ac) "Stipulated Loss Value Supplement" with respect to an Equipment Group,
shall have the meaning set forth in the Equipment Schedule associated therewith.
(ad) "Supplier" shall mean the manufacturer or the vendor of the Equipment,
as set forth on each Equipment Schedule.
(ae) "Term" shall mean the Initial Term, as defined in Section 8 hereof,
and any Renewal Term, as defined in Section 8 hereof.
(af) "Total Cost" shall mean, with respect to an Item of Equipment, (1) the
acquisition cost of such Item of Equipment (including Lessor's capitalized
costs), as set forth on the Equipment Schedule on which such Item of Equipment
is described, or (2) if no such acquisition cost is specified, the Supplier's
invoice price for such Item of Equipment plus Lessor's capitalized costs, or (3)
if no such acquisition cost is specified and no such invoice price is
obtainable, an allocated price for such Item of Equipment based on the Total
Cost of all Items of Equipment set forth on the Equipment Schedule on which such
Item of Equipment is described, as determined by Lessor in its sole discretion.
5. Supplier Not an Agent. LESSEE UNDERSTANDS AND AGREES THAT (i) NEITHER
THE SUPPLIER, NOR ANY SALES REPRESENTATIVE OR OTHER AGENT OF THE SUPPLIER, IS (I
) AN AGENT OF LESSOR OR (2) AUTHORIZED TO MAKE OR ALTER ANY TERM OR CONDITION OF
THIS LEASE, AND (ii) NO SUCH WAIVER OR ALTERATION SHALL VARY THE TERMS OF THIS
LEASE UNLESS EXPRESSLY SET FORTH HEREIN.
6. Ordering Equipment. Lessee has selected and ordered the Equipment from
the Supplier and, if appropriate, has entered into a Purchase Agreement with
respect thereto. Lessor shall accept an assignment from Lessee of Lessee's
rights, but none of Lessee's obligations, under any such Purchase Agreement.
Lessee shall arrange for delivery of the Equipment so that it can be accepted in
accordance with Section 7 hereof. If an Item of Equipment is subject to an
existing Purchase Agreement between Lessee and the Supplier, Lessee warrants
that such Item of Equipment has not been delivered to Lessee as of the date of
the Equipment Schedule applicable thereto. If Lessee causes the Equipment to be
modified or altered, or requests any additions thereto prior to the Rent
Commencement Date, Lessee (i) acknowledges that any such modification,
alteration or addition to an Item of Equipment may affect the Total Cost, taxes,
purchase and renewal options, if any, Stipulated Loss Value and Rent with
respect to such Item of Equipment, and (ii) hereby authorizes Lessor to adjust
such Total Cost, taxes, purchase and renewal options, if any, Stipulated Loss
Value and Rent as appropriate. Lessee hereby authorizes Lessor to complete each
Equipment Schedule with the serial numbers and other identification data of the
Equipment Group associated therewith, as such data is received by Lessor.
7. Delivery and Acceptance. Upon acceptance for lease by Lessee of any
Equipment delivered to Lessee and described in any Equipment Schedule, Lessee
shall execute and Deliver to Lessor a Certificate of Acceptance. LESSOR SHALL
HAVE NO OBLIGATION TO ADVANCE FUNDS FOR THE PURCHASE OF THE EQUIPMENT UNLESS AND
UNTIL LESSOR SHALL HAVE RECEIVED A CERTIFICATE OF ACCEPTANCE RELATING THERETO
EXECUTED BY LESSEE. Such Certificate of Acceptance shall constitute Lessee's
acknowledgment that such Equipment (a) was received by Lessee, (b) is
satisfactory to Lessee in all respects and is acceptable to Lessee for lease
hereunder, (c) is suitable for Lessee's purposes, (d) is in good order, repair
and condition, (e) has been installed and operates properly, and (f) is subject
to all of the terms and conditions of this Lease (including, without limitation,
Section 2 hereof).
8. Term: Survival. With respect to any Item of Equipment, unless otherwise
specified thereon, the initial term of this Lease (the "Initial Term") shall
commence on the date on which such Item of Equipment is delivered to Lessee,
and, unless earlier terminated as provided herein, shall expire on the final
Rent Payment Date for such Item of Equipment. With respect to an Item of
Equipment, any renewal term of this Lease (individually, a "Renewal Term"), as
contemplated hereby, shall commence immediately upon the expiration of the
Initial Term or any prior Renewal Tenn, as the case may be, and, unless earlier
terminated as provided herein, shall expire on the date on which the final
payment of Rent is due and paid hereunder. All obligations of
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Lessee hereunder shall survive the expiration, cancellation or other termination
of the Term hereof.
9. Rent. With respect to Each Item of Equipment, Lessee shall pay the Rent
set forth on the Equipment Schedule applicable to such Item of Equipment,
commencing on the Rent Commencement Date, and, unless otherwise set forth on
such Equipment Schedule, on the same day of each payment period thereafter for
the balance of the Term. Rent shall be due whether or not Lessee has received
any notice that such payments are due. All Rent shall be paid to Lessor at its
address set forth on the Equipment Schedule, or as otherwise directed by Lessor
in writing.
10. Location: Inspection: Labels. The Equipment shall be delivered to the
Equipment Location and shall not be removed therefrom without Lessor's prior
written consent. Lessor shall have the right to enter upon the Equipment
Location and inspect the Equipment at any reasonable time. Lessor may, without
notice to Lessee, remove the Equipment if the Equipment is, in the opinion of
Lessor, being used beyond its capacity or is in any manner improperly cared for,
abused or misused. At Lessor's request, Lessee shall affix labels stating that
the Equipment is owned by Lessor permanently in a prominent place on the
Equipment and shall keep such labels in good repair and condition.
11. Use: Alterations. Lessee shall use the Equipment lawfully and only in
the manner for which it was designed and intended and so as to subject it only
to ordinary wear and tear. Lessee shall comply with all Applicable Law. Lessee
shall immediately notify Lessor in writing of any existing, pending or
threatened investigation, inquiry, claim or action by any Governmental Authority
in connection with any Applicable Law or Governmental Action which could
adversely affect the Equipment or this Lease. Lessee, at its own expense, shall
make such alterations, additions or modifications or irnprovements to the
Equipment as may be required from time to time to meet the requirements of
Applicable Law or Governmental Action. Except as otherwise permitted herein,
Lessee shall not make any alterations, additions, modifications or improvements
to the Equipment without Lessor's prior written consent.
12. Repairs and Maintenance~ Lessee, at Lessee's own cost and expense,
shall (a) keep the Equipment in good repair, good operating condition and
working order and in compliance with the manufacturer's specifications, and (b)
enter into and keep in full force and effect during the Term hereof a
maintenance agreement with the manufacturer of the Equipment, or a manufacturer-
approved maintenance organization, to maintain, service and repair the Equipment
so as to keep the Equipment in as good operating condition and working order as
it was when it first became subject to this Lease and in compliance with the
manufacturer's specifications. Upon Lessor's request, Lessee shall furnish
Lessor with an executed copy of any such maintenance agreement. An alternate
source of maintenance may be used by Lessee with Lessor's prior written consent.
Lessee, at its own cost and expense and within a reasonable period of time,
shall replace any part of any Item of Equipment that becomes worn out, lost,
stolen, destroyed, or otherwise rendered permanently unfit or unavailable for
use (whether or not such replacement is covered by the aforesaid maintenance
agreement), with a replacement part of the same manufacture, value, remaining
useful life and utility as the replaced part immediately preceding the
replacement (assuming that such replaced part is in the condition required by
this Lease).Such replacement part shall be free and clear of all Liens.
Notwithstanding the foregoing, this paragraph shall not apply to any Loss or
Damage (as defined in Section 16 hereof) of any Item of Equipment.
13. Return of Equipment. Upon the expiration (subject to Section 32 hereof
and except as otherwise provided in an Equipment Schedule) or earlier
termination of this Lease, Lessee, at its sole expense, shall return the
Equipment to Lessor by delivering such Equipment F.A.S. or F.O.B. to such
location on such carrier (packed for shipping) as Lessor shall specify. Lessee
agrees that the Equipment, when returned, shall be in the condition required by
Section 12 hereof. All components of the Equipment shall have been properly
serviced, following the manufacturer's written operating and servicing
procedures, such that the Equipment is eligible for a manufacturer's's standard,
full service maintenance contract without Lessor's incurring any expense to
repair or rehabilitate the Equipment. If, in the opinion of Lessor, any Item of
Equipment fails to meet the standards set forth above, Lessee agrees to pay on
demand all costs and expenses incurred in connection with repairing such Item of
Equipment and restoring it so as to meet such standards, assembling and
delivering such Item of Equipment. Lessee shall give Lessor ninety (90) days
written notice (the "Return Notice") that Lessee is returning the Equipment as
provided for above. If Lessee fails to return any Item of Equipment as required
hereunder, then, all of Lessee's obligations under this Lease (including,
without limitation, Lessee's obligation to pay Rent for such Item of Equipment
at the rental then applicable under this Lease) shall continue in full force and
effect until such Item of Equipment shall have been returned in the condition
required hereunder.
14. Equipment Upgrades/Attachments. In addition to the requirements of
Section 11 hereof, Lessee, at its own expense, may from time to time add or
install upgrades or attachments to the Equipment during the Term; provided. that
such upgrades or attachments (a) are readily removable without causing material
damage to the Equipment, (b) do not materially adversely affect the Fair Market
Sale Value, the Fair Market Rental Value, residual value, productive capacity,
utility or remaining useful life of the Equipment, and (c) do not cause such
Equipment to become "limited use property" within the meaning of Revenue
Procedure 76-30, 1976-2 C.B. 647 (or such other successor tax provision), as of
the applicable delivery date or the time of such upgrade or attachment. Any such
upgrades or attachments which are not required by Section 11 hereof and which
can be removed without
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causing damage to or adversely affecting the condition of the Equipment, or
reducing the Fair Market Sale Value, the Fair Market Rental Value, residual
value, productive capacity, utility or remaining useful life of the Equipment
shall remain the property of Lessee; and upon the expiration or earlier
termination of this Lease and provided that no Event of Default exists, Lessee
may, at its option, remove any such upgrades or attachments and, upon such
removal, shall restore the Equipment to the condition required hereunder.
15. Sublease and Assignment. (a) WITHOUT LESSOR'S PRIOR WRITTEN CONSENT,
LESSEE SHALL NOT (i) ASSIGN, TRANSFER, PLEDGE, HYPOTHECATE OR OTHERWISE DISPOSE
OF THIS LEASE, THE EQUIPMENT OR ANY INTEREST THEREIN, OR (ii) SUBLET OR LEND THE
EQUIPMENT TO, OR PERMIT THE EQUIPMENT TO BE USED BY, ANYONE OTHER THAN LESSEE OR
LESSEE'S QUALIFIED EMPLOYEES.
(b) Lessor, at any time with or without notice to Lessee, may sell,
transfer, assign and/or grant a security interest in this Lease, any Equipment
Schedule or any Item of Equipment. In any such event, any such purchaser,
transferee, assignee or secured party shall have and may exercise all of
Lessor's rights hereunder with respect to the items to which any such sale,
transfer, assignment and/or security interest relates, and LESSEE SHALL NOT
ASSERT AGAINST ANY SUCH PURCHASER, TRANSFEREE, ASSIGNEE OR SECURED PARTY ANY
DEFENSE, COUNTERCLAIM OR OFFSET THAT LESSEE MAY HAVE AGAINST LESSOR. Lessee
acknowledges that no such sale, transfer, assignment and/or security interest
will materially change Lessee's duties hereunder or materially increase its
burdens or risks hereunder. Lessee agrees that upon written notice to Lessee of
any such sale, transfer, assignment and/or security interest, Lessee shall
acknowledge receipt thereof in writing and shall comply with the directions and
demands of Lessor's successor or assign.
16. Loss of or Damage to Equipment. (a) Lessee shall bear the entire risk
of loss, theft, destruction, disappearance of or damage to any and all Items of
Equipment ("Loss or Damage") from any cause whatsoever during the Term hereof
until the Equipment is returned to Lessor in accordance with Section 13 hereof.
No Loss or Damage shall relieve Lessee of the obligation to pay Rent or of any
other obligation under this Lease.
(b) In the event of Loss or Damage to any Item of Equipment, Lessee, at the
option of Lessor, shall within thirty (30) days following such Loss or Damage:
(I ) place such Item of Equipment in good condition and repair, in accordance
with the terms hereof; (2) replace such Item of Equipment with replacement
equipment (acceptable to Lessor) in as good condition and repair, and with the
same value, remaining useful economic life and utility, as such replaced Item of
Equipment immediately preceding the Loss or Damage (assuming that such replaced
Item of Equipment is the condition required by this Lease), which replacement
equipment shall be free and clear of all Liens; or (3) pay to Lessor the sum of
(i) all Rent due and owing hereunder with respect to such Item of Equipment (at
the time of such payment) plus (ii) the Stipulated Loss Value as of the Rent
Payment Date next following the date of such Loss or Damage with respect to such
Item of Equipment, as set forth on the Schedule applicable thereto. Upon
Lessor's receipt of the payment required under subsection (3) above, Lessee
shall be entitled to Lessor's interest in such Item of Equipment, in its then
condition and location, "as is" and "where is", without any warranties, express
or implied. If Lessee replaces the Item of Equipment pursuant to subsection (b)
above, title to such replacement equipment shall immediately (and without
further act) vest in Lessor and thereupon shall be deemed to constitute Items of
Equipment and be fully subject to this Lease as if originally leased hereunder.
If Lessee fails to either restore or replace the Item of Equipment pursuant to
subsection (I) or (2) above, respectively, Lessee shall make the payment under
subsection (3) above.
17. Insurance. (a) Lessee, at all times during the Term hereof (until the
Equipment shall have been returned to Lessor) and at Lessee's own cost and
expense, shall maintain (I) insurance against all risks of physical loss or
damage to the Equipment (including theft and collision for Equipment consisting
of motor vehicles) in an amount not less than the full replacement value thereof
or the Stipulated Loss Value thereof, whichever is greater, and (2)
comprehensive public liability insurance including blanket contractual liability
for personal and bodily injury and property damage in an amount satisfactory to
Lessor.
(b) All insurance policies required hereunder shall (I) require 30 days'
prior written notice of cancellation or material change in coverage to Lessor
(any such cancellation or change, as applicable, not being effective until the
thirtieth (30th) day after the giving of such notice); (2) name Lessor as an
additional insured under the public liability policies and name Lessor as sole
loss payee under the property insurance policies; (3) not require contributions
from other policies held by Lessor; (4) waive any right of subrogation against
Lessor; (5) in respect of any liability of any of Lessor, except for the
insurers' salvage rights in the event of a Loss or Damage, waive the right of
such insurers to set-off, to counterclaim or to any other deduction, whether by
attachment or otherwise, to the extent of any monies due Lessor under such
policies; (6) not require that Lessor pay or be liable for any premiums with
respect to such insurance covered thereby; (7) be in full force and effect
throughout any geographical areas at any time traversed by any Item of
Equipment; and (8) contain breach of warranty provisions providing that, in
respect of the interests of Lessor in such policies, the insurance shall not be
invalidated by any action or inaction of Lessee or any other person (other than
Lessor) and shall insure Lessor regardless of any breach or violation of any
warranty, declaration or condition contained in such policies by Lessee or by
any other person (other than Lessor). Prior to the first date of delivery of any
Item of Equipment hereunder, and thereafter not less than 15 days prior to the
expiration dates of the expiring policies theretofore delivered pursuant to this
Section, Lessee shall deliver to Lessor a duplicate original of all policies (or
in the case of blanket policies, certificates thereof issued by the insurers
thereunder) for the insurance maintained pursuant to this Section.
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18. General Tax Indemnification. Lessee shall pay when due and shall
indemnify and hold Lessor harmless from and against (on an after-tax basis) any
and all taxes, fees, withholdings, levies, imposts, duties, assessments and
charges of any kind and nature (together with interest ad penalties thereon)
(including, without limitation, sales, use, gross receipts, personal property,
ad valorem, business and occupational, franchise, value added, leasing, leasing
use, documentary, stamp or other taxes) imposed upon or against Lessor, Lessor's
assigns, Lessee or any Item of Equipment by any Governmental Authority with
respect to any Item of Equipment or the manufacturing, ordering, sale, purchase,
shipment, delivery, acceptance or rejection, ownership, titling, registration,
leasing, subleasing, possession, use, operation, removal, return or other
dispossession thereof or upon the rents, receipts or earnings arising therefrom
or upon or with respect to this Lease, excepting only all Federal, state and
local taxes on or measured by Lessor's net income (other than income tax
resulting from making any alterations, improvements, modifications, additions,
upgrades, attachments, replacements or substitutions by Lessee). Whenever this
Lease terminates as to any Item of Equipment, Lessee shall, upon written request
by Lessor, advance to Lessor the amount determined by Lessor to be the personal
property or other taxes on said item which are not yet payable, but for which
Lessee is responsible, provided Lessor provides Lessee with copies of tax bills
supporting Lessor's request.
19. Lessor's Right to Perform for Lessee. If Lessee fails to perform or
comply with any of its obligations contained herein, Lessor may (but shall not
be obligated to do so) itself perform or comply with such obligations, and the
amount of the reasonable costs and expenses of Lessor incurred in connection
with such performance or compliance, together with interest on such amount at
the Late Payment Rate, shall be payable by Lessee to Lessor upon demand. No such
performance or compliance by Lessor shall be deemed a waiver of the rights and
remedies of Lessor or any assignee of Lessor against Lessee hereunder or be
deemed to cure the default of Lessee hereunder.
20. Delinquent Payments: Interest. If Lessee fails to pay any Rent or other
sums under this Lease when the same becomes due, Lessee shall pay to Lessor a
late charge equal to five percent (5%) of such delinquent amount. Such late
charge shall be payable by Lessee upon demand by Lessor and shall be deemed Rent
hereunder. In no event shall such late charge exceed the maximum amounts
permitted under Applicable Law.
21. Personal Property: Liens. Lessor and Lessee hereby agree that the
Equipment is, and shall at all times remain, personal property notwithstanding
the fact that any Item of Equipment may now be, or hereafter become, in any
manner affixed or attached to real property or any improvements thereon. Lessee
shall at all times keep the Equipment free and clear from all Liens. Lessee
shall (i) give Lessor immediate written notice of any such Lien, (ii) promptly,
at Lessee's sole cost and expense, take such action as may be necessary to
discharge any such Lien, and (iii) indemnify and hold Lessor, on an after-tax
basis, harmless from and against any loss or damage caused by any such Lien.
22. Events of Default: Remedies. (a) As used herein, the term "Event of
Default" shall mean any of the following events: (1) Lessee fails to pay any
Rent within ten (10) days after the same shall have become due; (2) Lessee or
any Guarantor becomes insolvent or makes an assignment for the benefit of its
creditors; (3) a receiver, trustee, conservator or liquidator of Lessee or any
Guarantor or of all or a substantial part of Lessee's or such Guarantor's assets
is appointed with or without the application or consent of Lessee or such
Guarantor, respectively; (4) a petition is filed by or against Lessee or any
Guarantor under any bankruptcy, insolvency or similar legislation; (5) Lessee or
any Guarantor violates or fails to perform any provision of either this Lease or
any other loan, lease or credit agreement or any acquisition or purchase
agreement with Lessor or any other party; (6) Lessee violates or fails to
perform any covenant or representation made by Lessee herein; (7) any
representation or warranty made herein or in any Lease, certificate, financial
statement or other statement furnished to Lessor shall prove to be false or
misleading in any material respect as of the date on which the same was made;
(8) Lessee makes a bulk transfer of furniture, furnishings, fixtures or other
equipment or inventory; or (9) there is a material adverse change in Lessee's or
any Guarantor's financial condition since the first Rent Commencement Date of
any Equipment Schedule executed in connection herewith. An Event of Default with
respect to any Equipment Schedule hereunder shall, at Lessor's option,
constitute an Event of Default for all Equipment Schedules hereunder and any
other agreements between Lessor and Lessee.
(b) Upon the occurrence of an Event of Default, Lessor may do one or more
of the following as Lessor in its sole discretion shall elect: (1) proceed by
appropriate court action or actions, either at law or in equity, to enforce
performance by Lessee of the applicable covenants of this Lease or to recover
damages for the breach thereof; (2) sell any Item of Equipment at public or
private sale; (3) hold, keep idle or lease to others any Item of Equipment as
Lessor in its sole discretion may determine; (4) by notice in writing to Lessee,
terminate this Lease, without prejudice to any other remedies hereunder; (5)
demand that Lessee, and Lessee shall, upon written demand of Lessor and at
Lessee's expense forthwith return all Items of Equipment to Lessor or its order
in the manner and condition required by, and otherwise in accordance with all of
the provisions of this Lease, except those provisions relating to periods of
notice; (6) enter upon the premises of Lessee or other premises where any Item
of Equipment may be located and, without notice to Lessee and with or without
legal process, take possession of and remove all or any such Items of Equipment
without liability to Lessor by reason of such entry or taking possession, and
without such action constituting a termination of this Lease unless Lessor
notifies Lessee in writing to such effect; (7) by written notice to Lessee
specifying a payment date, demand that Lessee pay to Lessor, and Lessee shall
pay to Lessor, on the payment date specified in such notice, as
Page 6
liquidated damages for loss of a bargain and not as a penalty, any unpaid Rent
due prior to the payment dated specified in such notice plus whichever of the
following amounts Lessor, in its sole discretion, shall specify in such notice
(together with interest on such amount at the Late Payment Rate from the payment
date specified in such notice to the date of actual payment): (i) an amount,
with respect to an Item of Equipment, equal to the Rent payable for such Item of
Equipment, equal to the Rent payable for such Item of Equipment for the
remainder of the then current Term thereof, after discounting such Rent to
present worth as of the payment date specified in such notice on the basis of a
per annum rate of discount equal to five percent (5%) from the respective dates
upon which such Rent would have been paid had this Lease not been terminated; or
(ii) the Stipulated Loss Value, computed as of the payment date specified in
such notice or, if such payment date is not a Rent Payment Date, the Rent
Payment Date next following the payment date specified in such notice (provided,
however, that, with respect to any Item of Equipment returned to or repossessed
by Lessor, the amount recoverable under this clause (ii) shall be reduced (but
not below zero) by an amount equal to the Fair Market Sales Value (taking into
account its actual condition) of such Item of Equipment; (8) cause Lessee, at
its expense, to promptly assemble any and all Items of Equipment and return the
same to Lessor at such place as Lessor may designate in writing; and (9)
exercise any other right or remedy available to Lessor under applicable law or
proceed by appropriate court action to enforce the terms hereof or to recover
damages for the breach hereof or to rescind this Lease. In addition, Lessee
shall be liable, except as otherwise provided above, for any and all unpaid Rent
due hereunder before or during the exercise of any of the foregoing remedies,
and for legal fees and other costs and expenses incurred by reason of the
occurrence of any Event of Default or the exercise of Lessor's remedies with
respect thereto, including without limitation the repayment in full of any costs
and expenses necessary to be expended in repairing any Item of Equipment in
order to cause it to be in compliance with all maintenance and regulatory
standards imposed by this Lease. If an Event of Default occurs, to the fullest
extent permitted by law, Lessee hereby waives any right to notice of sale and
further waives any defenses, rights, offsets or claims against Lessor because of
the manner or method of sale or disposition of any Items of Equipment. None of
Lessor's rights or remedies hereunder are intended to be exclusive of, but each
shall be cumulative and in addition to any other right or remedy referred to
hereunder or otherwise available to Lessor or its assigns at law or in equity.
No express or implied waiver by Lessor of any Event of Default shall constitute
a waiver of any other Event of Default or a waiver of any of Lessor's rights
23. Notices. All notices and other communications hereunder shall be in
writing ant shall be transmitted by hand, overnight courier or certified mail
(return receipt requested), postage prepaid. Such notices and other
communications shall be addressed to the respective party at the address set
forth above or at such other address as any party may from time to time
designate by notice duly given in accordance with this Section. Such notices and
other communications shall be effective upon receipt.
24. General Indemnification. Lessee shal1 pay, and shall indemnify and hold
Lessor harmless on an after-tax basis from and against, any and all liabilities,
causes of action, claims, suits, penalties, damages, losses, costs or expenses
(including attorneys' fees), obligations, liabilities, demands and judgements,
and Liens, of any nature whatsoever (collectively, a "Liability") arising out of
or in any way related to: (a) this Lease or any other written agreement entered
into in connection with the transactions contemplated hereby and thereby
(including, without limitation, a Purchase Agreement, if aay) or any amendment,
waiver or modification of any of the foregoing or the enforcement of any of the
terms hereof or any of the foregoing, (b) thc manufacture, purchase, ownership,
selection, acceptance, rejection, possession, lease, sublease, operation, use,
maintenance, documenting, inspection, control, loss, damage, destruction,
removal storage, surrender, sale, use, condition, delivery, nondelivery, return
or other disposition of or any other matter relating to any Item of Equipment or
any part or portion thereof (including, in each case and without limitation,
latent or other defects, whether or not discoverable, any claim for patent,
trademark or copyright infringement and any and all Liabilities in any way
relating to or arising out of injury to persons, properties or the environment
or any and all Liabilities based on strict liability in tort, negligence, breach
of warranties or violations of any regulatory law or requirement, (c) a failure
to comply fully with any Environmental Law with respect to the Equipment or its
operation or use, and (d) Lessee's failure to perform any covenant, or breach of
any representation or warranty, hereunder; provided, that the foregoing
indemnity shall not extend to the Liabilitics to thc extent resulting solely
from the gross negligence or wilful misconduct of Lessor. Lessee shall deliver
promptly to Lcssor (i) copies of any documents roceived from the United States
Environmental Protection Agency or any state, county or municipal environmental
or health agency and (ii) copies of any documents submitted by Lessee or any of
its subsidiaries to the United States Environmental Protection Agency or any
state, county or municipal environmental or health agency concerning the
Equipment or Its operation.
25. Severability: Captions. Any provision of this Lease or any Equipment
Schedule which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability sha11 not invalidate or render
unenforceable such provision in any other jurisdiction. Captions are intended
for convenience or reference only, and shall not be construed to define, limit
or describe the scope or intent of any provisions hereof.
26. Lessor's Expense. Lessee shall pay all costs and expenses of Lessor,
including attorneys' fees and the fees of any collectlon agencies, incurred by
Lessor in enforcing any of the terms, conditions or provisions hereof or in
protecting Lessor's rights hereunder.
27. Related Equipment Schedules. In the event that any Item of Equipment
covered under any Equipment Schedule hereunder may become attached or affixed
to, or used in connection with, Equipment covered under another Equipment
Schedule hereunder (a "Related Equipment Schedule"), Lessee agree that, if
Lessee elects to exercise a purchase or renewal option under any such Equipment
Schedule, or if Lessee elects to return the Equipment under any such Equipment
Schedule pursuant to Section 13 hereof, then Lessor, in its sole dlscretion, may
require that all Equipment leased under all Related Equipment Schedules be
similarly disposed of.
28. Financial and Other Data. During the Term hereof, Lessee shal1 furnish
Lessor, as soon as available and in any event within 60 days after the end of
each quarterly period (except the last) of each fiscal year, and, as soon as
available and in any event within 120 days after the lst day of each fiscal
year, financial statements of Lessee and each Guarantor, in each case certified
by an independent public accountant if customarily available or requested.
Lessee shall also furnish such other financial reports, information or data as
Lessor may reasonably request from time to time;
29. Commitment Fee Requirement. An amount equal to the first periodic
payment of Rent must accompany each Lessee proposal for an Equipment Schedule
hereunder. THIS COMMITMENT FEE IS NONE-REFUNDABLE; provided, however, that, upon
Lessor's acceptance of Lessee's proposal to enter into such Equipment Schedule,
such commitment fee shall be applied to the first periodic payment of Rent
thereunder.
30. No Affiliation with the Supplier. Lessee hereby represents and warrants
to Lessor that, except as previously disclosed in writing to lessor, neither
Lessee nor any of its officers or directors (if a corporation) or partners (if a
partnership) has, directly or indirectly, any financial interest in the
Supplier.
31. Representations and Warranties of Lessee. Lessee represents and
warrants that: (a) Lessee is a corporation duly organized and validly existing
in good standing under the laws of the state of its incorporation; (b) the
execution, delivery and performance of this Lease and all related instruments
and documents (1) have been duly authorized by all necessary corporate and/or
partnership action on the part of Lessee, (2) do not require the approval of any
stockholder, partner, trustee or holder of any obligations of Lessee except such
as have becn duly obtained, and (3) do not and will not contravene any law,
governmental rule, regulation or order now binding on Lessee, or the character
or by-laws of Lessee, or contravene the provisions of, or constitute a default
under, or result in the creation of any lien or encumbrance upon the property of
Lessee under, any indenture, mortgage, contract or other agreement to which
Lcssee is a party or by which it or its property is bound; (c) this Lease and
all related instruments and documents, when entered into, will constitute legal,
valid and binding obligations of Lessee enforceable against Lessee in accordance
with tbe terms thereof; (d) there are no pending actions or proceedings to which
Lessee is a part, and tbere are no other pending or threatened actions or
proceedings of wbich Lessee has knowledge, before any court, arbitrator or
administrative agency, which, either individually or in the aggregate, would
adversely effect the financial condition of Lessee, or the ability of Lessee to
perform its obligations hereunder, (e) Lessee is not in default under any
obligation for tbe payment of borrowed money, for the deferred purchase price of
property or for the payment of any rent under any lease agreement which, either
individually or in the aggregate, would have the same such effect; (f) under the
laws of the state(s) in which the Equipment is to be located, the Equipment
consists solely of personal property and not fixtures; (g) the financial
statements of Lessee (copies of which have been furnished to Lessor) have been
prepared in accordance with generally acceptable accounting principles
consistently applied ("GAAP"), and fairly present Lessee's financial condition
and the results of its operations as of the date of and for the period covered
by such statements, and since the date of such statements there has been no
material adverse change in such conditions or operations; (h) the address stated
above is the chief place of business and chief executive office, or in the case
of individuals, the primary residece, of Lessee; (i) Lessee does not conduct
business under a trade, assumed or fictitious name; and (j) the Equipment is
being leased bereunder sololy for business purposes and that no item of
Equipment will be used for personal family or household purposes.
32. Renewal And Purchase Options. With respect to an Equipment Schedule and
the Equipment Group set forth thereon, so long as no Default or Event of Default
shall have occurred and is continuing, then, upon not less than ninety (90) days
prior Written notice to Lessor, ("Renewal Notice") Lessee may (a) at the
expiration of the Initial Term, or any Renewal Term, purchase all, but not less
than al1, of the Equipment Group for the Fair Market Sale Value of such
Equipment Group, payable in cash to Lessor upon the expiration of the Initial
Term or any Renewal Term, as the case may, (b) at the expiration of the Initial
Term, renew this Lease on a month to month basis at the same Rent payable at the
expiration of the Initial Term, or (c) at the expiration of tho Initial Term,
renew this Lease for a minimum period of not less than twelve (12) consecutive
months at the then current Fair Market Rental Value. If Lessee fails to give
Lessor the Return Notice or the Renewal Notice at least ninety (90) days before
the expiration of the Initial Term, Lessee shall be deemed to have chosen option
(b) above. If Lessee exercises option.(a) above, Lessee shall purchase the
Equipment "as is" and "where is" and without any warranties, express or implied,
Lessor.
33. Lessee's Waivers. To the extent permitted by Applicable Law, Lessee
hereby waives (a) any and all rights and remedies
which it may now have or which at any time hereafter may be conferred upon it by
statute (including, without limitation, Article 2A of the Uniform Commercial
Code, as applicable) or otherwise, (1) which may limit or modify Lessor's rights
or remedies hereunder, (2) to terminate, cancel, quit, repudiate or surrender
this Lease, except as expressly provided herein; (3) to reject, revoke
acceptance or accept partial delivery of thc Equipment; (4) to recover damages
from Lessor for any breach of warranty or for any other reason provided,
however, that no such waiver shall preclude Lessee from asserting any such claim
against Lessor in a separate cause of action; or (5) to setoff or deduct all or
any part of any claimed damages resulting from Lessor's default, if any, under
this Lease.
34. UCC Filings. LESSEE HEREBY APPOINTS LESSOR OR ITS ASSIGNEE AS ITS TRUE
AND LAWFUL ATTORNEY IN FACT, IRREVOCABLY AND COUPLED WITH AN INTEREST, TO
EXECUTE AND FILE ON BEHALF OF LESSEE ALL UCC FINANCING STATEMENTS WHICH IN
LESSOR'S SOLE DlSCRETION ARE NECESSARY OR PROPER TO SECURE LESSOR'S INTEREST IN
THE EQUIPMENT IN ALL APPLICABLE JURISDICTIONS.
35. Miscellaneous. Time is of the essence with respect to this Lease. Any
failure of Lessor to require strict performance by Lessee or any waiver by
Lessor or any provision berein shall not be construed as a consent or waiver of
any provision of this Lease. Neither this Lease nor any Equipment Schedule may
be amended except by a writing signed by Lessor and Lessee. This Lease and each
Equipment Schedule shall be binding upon, and inure to the benefit of, the
parties hereto, their permittedo successors and assigns. This Lease will be
binding upon Lessor only if executed by a duly authorized officer or
representative of Lessor at lessor's principal place of business as set forth
above. This Lease, and all other documents (the execution and delivery of which
by Lessee is contemplated hereunder), shall be executed on Lessee's behalf by
Authorized Signers of the Lessee. THIS LEASE IS BEING DELIVERED IN THE STATE OF
NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
36. Jury Trial Waiver LESSOR AND LESSER HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO WHICH LESSOR OR LESSEE MAY BE PARTIES ARISING OUT OF OR
ANY WAY PERTAINING TO THIS LEASE. THIS WAIVER IS MADE KNOWINGLY, WILLINGLY AND
VOLUNTARILY BY THE LESSOR AND THE LESSEE WHO EACH ACKNOWLEDGE THAT NO
REPRESENTATIONS HAVE BEBN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL
BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT.
37. More than One Lessee. If more than one person or entity executes this
Lease, each Equipment Schedule, and all addenda or other documents executed in
connection herewith or therewith, as "Lessee," the obligations of "Lessee"
contained herein and therein, shall be deemed joint and several and all
references to "Lessee" shall apply both 1ndividually and jointly.
38. Quiet Enjoyment. So long as no Event of Default has occurred and is
continuing, Lessee shall peaceably hold and quietly enjoy the Equipment without
interruption by Lessor or any person or entity claimmg through Lessor.
39. Entire Agreement. This Lease, together with all Equipment Schedules,
riders and addenda executed by Lessor and Lessee collectively constitute the
entire understanding or agreement between Lessor and Lessee with respect to the
leasing of the Equipment, and there is no understanding or agreement, oral or
written, which is not set forth herein or therein. By initialing below, Lessee
hereby further acknowledges the conditions of this Section 39.
Lessee's Initials: RK
40. Execution in Counterparts. This Master Equipment Lease Agreement may be
executed in several counterparts, each of which shall be an original and all of
whlch shall constitute but one and the same instrument.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease as of the
day and year first above written.
Lessee: Lusor:
WEBSECURE, INC. KEYCORP LEASING LTD.
By: Illegible By:
------------------------------- -------------------------
Name: Name:
Title: Title:
THIS IS A CERTIFICATE ACKNOWLEDGING
ACCEPTANCE OF THE EQUIPMENT FOR
PURPOSES OF THE BELOW-REFERENCED LEASE.
THIS IS NOT A DELIVERY RECEIPT.
LESSEE ACKNOWLEDGEMENT
(Certificate of Acceptance)
Lessee Xxxxx: Websecure, Inc.
All the items of Equipment covered by Equipment Schedule No. 01 to Master
Equipment Lease Agreement dated December 21, 1995 (the "Lease") between KeyCorp
Leasing Ltd., as lessor ("KCL"), and the undersigned, as lessee,. (a) were
received by the undersigned, (b) are satisfactory to the undersigned in all
respects and are acceptable to the undersigned for lease under the Lease, (c)
are suitable for the undersigned's purposes, (d) are in good order, repair and
condition, (e) have been installed and operate properly, and (f) are subject to
all of the terms and conditions of the Lease (including, without limitation,-
Section 3 thereof).
To the extent that Article 2A ("Article 2A") of the Uniform Commercial Code
("UCC") applies to the characterization of the Lease, the undersigned hereby
agree(s) that the Lease is a "Finance Lease" as defined therein; The undersigned
acknowledge(s): (i) that the undersigned has selected the "Supplier" (as defined
in the UCC) and has directed KCL to purchase the Equipment from the Supplier in
connection with the Lease, and (ii) that the undersigned has been informed in
writing in the Lease, before the undersigned's execution of thereof, that the
undersigned is entitled under Article 2A to the promises and warranties,
including those of any third party, provided to KCL by the Supplier in
connection with or as part of the Purchase Agreement (as defined in the Lease),
and that the undersigned may communicate with the Supplier and receive an
accurate and complete statement of those promises and warranties, including any
disclaimers and limitations of them or of remedies.
Dated: *X l2/26 , 1995
Websecure, Inc.
By: Illegible
---------------------------
Nane:
Title:
* To the extent that this date is left blank, the undersigned hereby
authorize(s) KCL to date this Certificate of Acceptance on the undersigned's
behalf.
(Lessee's initials)
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[EQUIPMENT SCHEDULE TO COME FROM OB&A]
